Opinion
No. 34/740.
11-06-1914
SIMMONS et al. v. CITY OF PATERSON.
Chauncey G. Parker, of Newark, for complainants. Edward F. Merry, of Paterson, for defendant.
Supplemental Opinion April 30, 1915.
Bill by Catherine Simmons and others against the City of Paterson, to ascertain damages sustained by complainants with respect to their riparian lands bordering on the Passaic river by reason of its pollution by sewage. Decree advised.
Chauncey G. Parker, of Newark, for complainants. Edward F. Merry, of Paterson, for defendant.
STEVENS, V. C. The problem is to ascertain the damages sustained by the various complainants in respect of their riparian lands bordering on the Passaic, by reason of its pollution by the sewage of Paterson. I have already formulated a rule in previous cases (Doremus v. Paterson, 73 N. J. Eq. 476, 69 Atl. 225; 81 N. J. Eq. 27, 85 Atl. 606; 82 N. J. Eq. 640, 90 Atl. 1135), and, as it has received the sanction of the Court of Errors, I have nothing to do but to apply it to the facts of this case.
I estimate the annual values of such parts of the various properties as are or may be affected by the condition of the river as follows:
| Catherine Simmons (house).............. | $350 |
| Catherine Simmons (ice houses from 1897 | |
| to 1905)............................. | 400 |
| From 1905.................... | 200 |
| John, William and James Hinchliffe....... | 450 |
| Alexander McDonald Granite Company | |
| (one-half of sliding scale)........................ | 300 |
| Mary R. Smith.............................. | 400 |
| Leonard Vanderbeck.................... | 450 |
| John Hannema.................... | 300 |
| Jessie Alyea.................. | 300 |
| Peter D. Henderson............. | 300 |
The above are the improved properties.
I estimate the annual loss arising from what has been called arrested development as follows:
| C. Howard Parmley...................... | $ 25 |
| Doherty Silk Company (since June 28, | |
| 1909)................................... | 150 |
| Edo Terhune (since his ownership is sever- | |
| -alty).................................... | 25 |
| Harold & Irving Terhune (since such own- | |
| ership)................................. | 15 |
| Rosemont Land & Improvement Company. | 50 |
As to the latter of these two classes of cases, I have only to say that an accurate ascertainment of the loss is impossible, and even an approximate estimate only problematical. Many of the considerations that enter into the problem have been adverted to in my former opinions, and, as applied to the particular cases here under consideration, there are others. Considering the advance of factories up the river from Passaic and down the river from Paterson and the kind of neighborhood such factories create, the new methods of travel, and the new tastes of the people, I do not think it possible for any one to assert, with confidence, what would have been the fate of the lands in question, had the water remained unpolluted.
I have made awards to the Doherty Silk Company and to the Rosemont Land & Improvement Company. Lots have been plotted and sold on both tracts, and so it has been argued that the lots are separate pieces of property, and that, as far as separated from the river by the old highways, they have become nonriparian. They were unquestionably riparian, notwithstanding those highways, when the Rosemont Company and Doherty purchased, and I am not satisfied that, because they have been plotted on paper and offered for sale, they have lost their character as such. The so-called improvements are scarcely discernible on the ground, and the properties seem still to be in the stage covered by the decisions of the Supreme Court in Doughty v. Somerville & Eastern R. R. Co., 22 N. J. Law, 495, and of the Court of Errors in Currie v. Waverly R. R. Co., 52 N. J. Law, 381, 392, 20 Atl. 56, 19 Am. St. Rep. 452.
It was argued by the city that three of the properties are not riparian in any part, viz., the Henderson, the Hinchliffe, and the Hannema properties, because it said that they stop at the edge of the stream.
As to the first, the oral evidence satisfies me that it is riparian. I have no doubt that it was intended to front the Henderson farm on the river, just as all the other farms in that vicinity and around Dundee Lake were at one time fronted on the river. It begins "at the Passaic river," which in legal parlance means at the medium filum aquæ, and, by the course of one chain from the road, it is carried back to the river as it used to flow.
The Hinchliffe property is also riparian.
The fifth course in the deed from James Simmons to Margaretta Barney runs:
"Thence (5) on the east side of the lake road 191 feet to the line of lands of Peter P. Kip; thence (6) easterly along said line 55 feet to Dundee Lake; thence (7) southerly along the same to a point," etc., etc.
Dundee Lake, so called, is a part of the Passaic river, whose waters are widened at that point by the Dundee dam. By the great weight of authority, such a description carries the title to the medium filum aquæ, if the grantor owns so far. In this case it is said that his grantors, John and Janet Bain, in May, 1837, conveyed to the Dundee Company, in fee, a tract of three-quarters of an acre lying in the Passaic river, "overflowed by the raising of the milldam" of that company. If the lastmentioned lot lay in front of the Barney lot, it would not be riparian, according to the cases of Stevens v. Newark & Paterson R. R. Co., 34 N. J. Law, 532, 3 Am. Rep. 269, and Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642. But it lies in front of only a part of it. The plot has been located by the city surveyor of Paterson. Prom his map it appears that if the side lines of the Barney lot be prolonged to the middle of the stream, or if lines at right angles to the shore line be drawn from the corners of the lot to the middle of the stream, there will still remain a strip of land that belonged to James Simmons and that ran to the medium filum, untouched by the Bain deed.
The question whether John and Bankje Hannema are riparian owners may, under the general course of decision, be more doubtful. The deed to them describes the third course as running along the northerly line of Mary Ann Van Saun "to the easterly line of the Passaic river and thence (4) northerly along the easterly line of the Passaic river, the several courses thereof, eight chains and thirty-two links to the place of beginning." The place of beginning is described as "a point in the easterly bank of the Passaic river, where the same is intersected by the division line between William P. Vreeland (the grantor) and Peter H. Doremus." I cannot find in the record any testimony which throws light upon the exact location of the beginning point thus mentioned.
To ascertain whether the title extends to the medium filum or to some other line, we have nothing to guide us but the language of the deed itself and the surrounding circumstances. The decisions treat lines running to a stream very much as they treat lines running to a highway. The cases disclose differences of opinion as to the effect to be given to the descriptive words in both classes of cases, some of them attributing more importance to paramount intention and others giving effect to the ordinary significance of the words used. The cases in our own courts are necessarily of more authority on this question than those of other tribunals. Salter v. Jonas, 39 N. J. Law, 469, 23 Am. Rep. 229, is a leading case. There the premises were described as beginning at a stake standing at the junction of the easterly line of Rowland street with the northerly line of Johnson street and running thence along the northerly line of Johnson Street south, etc., "thence (3) north 23° 40' west fifty (50) to a stake in the easterly line of Rowland street; thence (4) along the same south 66° west one hundred (100) feet" to the beginning. The question was whether Rowland street in front of the locus in quo, to its middle line, passed by this description. Beasley, C. J., speaking for the Court of Errors, said:
"This is a subject with respect to which the views of judges are much at variance. The general opinion appears to be that there is so strong a presumption of an intention to convey the soil of the highway, when the premises granted actually border upon it, that very plain indications of a contrary purpose are requisite to exclude it. Under the operation of such a test, the present deed would not embrace the land in dispute, for the descriptive words cannot be extended from their intrinsic force, so as to have so wide a reach. The words here used will not, if interpreted in their familiar sense, and standing by themselves, admit of being taken as delineatory of any part of the street. The only point for consideration, therefore, is whether, when the terms used have this restrictive force, they are to lose that force in the presence of the great presumption to the contrary, which is inherent in the position of affairs where a lot thus located is granted."
He then discusses the Pennsylvania rule, and adopts it, holding that, notwithstanding the language of the deed, the street passed by the conveyance. He says:
"The particular words should, in such transactions, be controlled and limited by the manifest intention which is unmistakeably displayed in the nature of the affair and the situation of the parties. When the conditions of the case are altered, as if the vendor should, in a given case, have an apparent interest to reserve to himself the parcel of street in question, a different rule of interpretation might become proper."
Now it would be quite illogical and unnecessary to hold that, the situation being similar, there should be one rule in the case of highways and another in the case of streams, if the reason of the rule should apply equally to both. The exception stated by the Chief Justice is comprehensive enough to do exact justice between the parties in any case. If the vendor has an apparent interest to reserve to himself what title he has to the street or stream in question, then such reservation should be made. It may be that he may more frequently have such an interest in the case of a stream than in the case of a highway. For example, a millowner using water power sells a lot on his millpond running to the "edge" or "bank" or "shore" of the stream. Here the interest is obvious. He needs the uninterrupted flow of the water, and it is not likely that he would consciously do that which would tend to endanger it. Hence many cases have held that, in such a situation, the words "edge," "shore," and "bank" should receive their everyday meaning, and so limit the grant. But where thereis no apparent reason for making the reservation, and where there are no express words of exclusion, the paramount intent of the parties will, no doubt, be best effectuated by applying the rule laid down in Salter v. Jonas.
Van Fleet, V. C, in Kanouse v. Slockbower, 48 N. J. Eq. 42, said:
"The law is well settled that a grant of land bounded upon or along a river, above tide water, carries the title of the grantee to the center of the stream, if the title of the grantor extends that far, unless the terms of the grant show that it was the intention of the parties that the grantee's title should not extend to that point."
And Justice Dixon in Attorney General v. Del. & Bound Brook B. R. Co., 27 N. J. Eq. on page 639, said:
"Among those rules, none, I think, is more firmly settled than this: That grants of land bounded upon or along rivers above tide water carry the exclusive * * * title of the grantee to the center of the stream, unless the terms of the grant clearly denote the intention to stop at the edge or margin of the river."
The precise point here under discussion was not before the court in either of those cases, but the general principle is stated and, as it seems to me, should, when it conies to its application, be applied in such a way as to harmonize with Salter v. Jonas.
Coming, then, to the case in hand, I find nothing to exclude the bed of the stream, except the vague words, "Beginning at a point in the easterly bank of the Passaic," and the further words, "To the easterly line of the Passaic river and thence along the easterly line of the Passaic river the several courses thereof," etc. These words are no more indicative of an intention to exclude the stream than were the corresponding words, in Salter v. Jonas, to exclude the street. In both "the easterly line" is declared in terms to be boundary. But, looking at the surrounding circumstances, I find no more reason for giving them an exclusive effect in the one case than in the other. The grantor was not a millowner or, as far as appears, engaged in a business which required the use of water or power. He conveyed all his front on the stream. He reserved no means of access to it. He did not thereafter claim or use it. The objection comes, not from him, but from the city of Paterson, which has not the slightest interest in the property. Then again I think it may fairly be said that if the grantor had really desired to reserve the land over which the water flowed, or any part of it (i. e., the land overflowed by the damming of the stream or that overflowed by the river in its natural state), he would not, by ambiguous description, have conveyed "to the Passaic river the several courses thereof." What did he mean by "river"? Did he thereby intend to retain the river bed and not the artificial lake bed? There is nothing apparent, tending to indicate an interest to retain anything. As there are no words of express exclusion, it seems to me that the rule in Salter v. Jonas should apply. Thereunder Hannema takes ad medium filum aquæ.
I have put the rental value of the Vanderbeck property at $450. This, though it would be warranted by the evidence of Mr. Van Duyne, is, I think, high. The property is, however, by reason of its peculiar situation, more exposed to the odors of the river than any other that I have considered, and the damages are therefore a little greater. By putting the rental value a little higher proportionately, and by applying to it the sliding scale heretofore formulated, Vanderbeck will receive an award corresponding to his greater injury. The rental values assigned include, of course, not only the houses, but the barns, outhouses, and curtilages attached thereto.
If in any case the rent actually received would, with the damages calculated according to the table, exceed the rental values assigned, the excess should be deducted.
Supplemental Opinion.
My attention has been called to evidence of Mr. Harder in reference to the Hinchliffe title, which I did not consider in writing my opinion in this case.
John and Janet Bain, in May, 1837, conveyed to the Dundee Manufacturing Company all that part of her lot lying on the Passaic river, "which is overflowed by the raising of the milldam of the said company, and which contains about three-quarters of an acre, be the same more or less." I was under the impression that this conveyance was indicated on the map by the quadrangular piece adjoining the shore line. In this I was mistaken. The land in the vicinity of the stream is low. There are no rocky or abrupt slopes. When the water was raised by the dam, it necessarily covered more or less of the upland on the entire frontage and interposed a strip of varying width between the old river bed and the new shore line. The interposition of this strip under the cases of Stevens v. Paterson & Newark B. R., 34 N. J. Law, 532, 3 Am. Rep. 269, and Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St. Rep. 642, deprived the upland, unconveyed by the grantor, of its riparian character. When, in 1839, Janet Bain conveyed the upland to Simmons, she conveyed a nonriparian tract, whose character and extent remained unchanged up to 1858, when the Dundee Company again raised its dam and overflowed more land. The contention is that inasmuch as a new shore line was then formed, and inasmuch as the water has, for over 50 years, continued to flow over a new bed, and inasmuch as this new bed belonged to the owner of the upland, the upland, as it now is, has again acquired a riparian character, entitling the grantees of Simmons to participate in the assessment of damages.
If my opinion in Doremus v. Paterson, 63 N. J. Eq. 606, 52 Atl. 1107, had been affirmed in toto, the Hinchliffes, who are the present owners, would have had a stronger case.
The upland is apparently riparian; the deeds to the Barneys, who were Simmons' immediate grantees, as I stated in the opinion already filed, by construction, included the then bed of the lake (if a lake), as far as the Simmons title went; and the injury suffered was and is identical with that suffered by the other riparian owners. But the Court of Appeals did not concur in my view of the rights of certain of the property owners. 65 N. J. Eq. 711, 55 Atl. 304.
The bill was filed by three classes of persons: "First. By those who were in the fullest sense riparian owners, above the ebb and flow of the tide." To these the Court of Errors gave relief. "Second. By those whose lands adjoined, not the river, but the artificially constructed canal which derives its waters from the river. Third. By those who were neither owners nor lessees of land fronting on the river or on the canal, but lessees of a certain amount of 'mill power' used in their respective factories for driving machinery," etc. Doremus v. Paterson, 63 N. J. Eq. 607, 52 Atl. 1107. Following, as I thought, the case of Butler Rubber Co. v. Newark, 61 N. J. Law, 32, 40 Atl. 224, I held that both of these classes were, as far as they were injuriously affected by the pollution, entitled to compensation; that if, as against Newark, the Butler Company could demand damages for the partial taking of its mill power, the lessees of such power and, a fortiori, the owners of land along the line of the new waterway, could as against Paterson, lawfully claim damages for the pollution of the water, to their injury—a pollution depriving them of some of its uses as effectually as if there had been partial abstraction.
The Court of Errors, basing itself on the decision of the Stockport Waterworks Case, 3 H. & C. 300, held that where a riparian owner conveys land not abutting on a stream, and grants water rights to be used thereon, the grantee of these rights (though the grant be valid as against the grantor) cannot sue an upper riparian owner for polluting the water to his injury. The English courts have refused to extend the doctrine of the Stock port Case to the case of an owner whose lands border on an artificial waterway, deriving its waters from a natural stream. In Nuttall v. Bracewell, L. R. 2 Exch. 1, Channell, B., says:
"If a riparian proprietor grants to some one, not such a proprietor, a right to abstract water from the stream, as in the Stockport Waterworks Case, I think the grantee can sue only the grantor for any interference with him. If, however, two adjoining riparian proprietors agree to divert the stream, so that it shall run in two channels instead of one, the water passing again into the old stream below their land, and flowing down to the lower proprietors as before, the case is, I think, different. What is done is apparent to all, and any use that may be made of the new stream, as to turn a mill, for instance, is as apparent as if the mill were upon the old stream. * * " This distinction is alluded to in the judgment of the majority in Stockport Waterworks Co. v. Potter, where it is said: 'The case where a riparian proprietor makes two streams instead of one and grants land on the new stream seems analogous to a grant of a portion of the river bank, but not analogous to a grant of a portion of the riparian estate not abutting on the river. In the case of a grant of land on a new stream, the grantee obtains a right of access to the river, and it is by virtue of that right of access that he obtains his water rights. * * * I see no reason why the law applicable to ordinary running streams should not be applicable to such a stream as this, for it is a natural stream or flow of water, though flowing in an artificial channel."
This case has been approved and followed in subsequent cases. Holker v. Porrett, L. R. 8 Exch. 107, on appeal 10 Exch. 59; Baily & Co. v. Clark (1902) 1 Ch. 649. It was an authority for giving compensation to landowners whose lands adjoined the canal, but the Court of Appeals did not follow it.
The matter stands thus: The canal had existed as a permanent structure from the year 1832; that is, for over 80 years. During all that time part of the water of the Passaic has flowed over its bed and has been returned to the river lower down. This did not, in the estimation of the appellate court, make it part of the stream and did not give to those whose lands bordered upon it any title to compensation.
In the case in hand, the old bed of the stream was separated from the upland by the Bain deed. The upland was plainly nonriparian from 1837 to 1858. Then the dam was raised again and more of the upland submerged. It is argued that the land thus submerged having become part of the bed of the stream, and the title to it and to the upland having resided in the same person, the upland has again become riparian. But the submerged portion is a bed just as artificial as that of the canal, with this difference: The water has flowed over the canal bed for 80 years and over the submerged land for less than CO. If the owner of land along the canal is not entitled to damages, I cannot see how the Hinchliffes can be.
But the case in hand has in it an element of weakness that does not exist in the case of the canal owners. Their land not only touched the water, but they had, as against their grantor by express grant, a right to utilize the flow. The Hinchliffes have no such right; not only have they no right as against the riparian owner higher up but they have no right as against the Dundee Company. On April 4, 1860, Simmons, through whom they derived title, made a deed to that company, giving them "the right and privilege of overflowing, without molestation forever all such and so much of the farm lands and premises of the said James Simmons * * * in, adjacent, and near the Passaic river (including the locus in quo) * * * as shall or may at any time be overflowed or caused to be overflowed with water or otherwise injured by means of the erection of the dam and works," etc. Neither by this deed nor otherwise has the Dundee Company giveneither Simmons or his grantees any correlative right to the flow of the stream.
In Belknap v. Trimble, 3 Paige (N. Y.) 605, Chancellor Walworth says:
"The learned commentator on American law lays it down as the established doctrine, both here and in England, that the exclusive enjoyment of water in a particular way for 20 years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title, as against a right in any other person, which might have been, but was not, asserted. * * * I apprehend also that this rule must be reciprocal; and that a proprietor at the head of a stream, who has changed the natural flow of the waters, and has continued such change for more than 20 years, cannot afterwards be permitted to restore it to its natural state, when it will have the effect to destroy the mills of other proprietors below, which have been erected in reference to such change in the natural flow of the stream."
If, on this principle, the Dundee Company had, without permission, continued to overflow the Simmons land for 20 years, it would have acquired the right to do so, and it may well be that Simmons might, as against it, have acquired the reciprocal right of enjoying and utilizing this flow, if he had notoriously incurred expense in so doing, on the assumption that it would continue. But the company's right does not depend upon adverse user. It is defined by deed. The deed confers upon the company a privilege of overflow to be exercised at its option. What is the apparent bed of the so-called lake today may be upland tomorrow. The lowering or raising of the water at its discretion was the very thing the company contracted for. There being no right as against the company, how is it possible to raise a right as against Paterson?
I am therefore obliged to conclude that the Hinchliffes are not entitled to compensation.